20040412_806.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KJELLANDER
CO MMISSI 0 NER SMITH
CO MMISSI 0 NER HANSEN
COMMISSION SECRETARY
COMMISSION STAFF
LEGAL
WORKING FILE
FROM:DAVE SCHUNKE
DATE:APRIL 9, 2004
RE:IDAHO POWER TARIFF ADVICE NO. 04-03, REVISION TO
SCHEDULE 95, FRANCHISE FEES PAID TO THE CITY OF WILDER.
On April 9, 2004, Idaho Power Company filed Tariff Advice No. 04-, Third Revised
Sheet No. 95-2. This tariff revision implements the 1 % franchise fee adopted by the City of
Wilder in Ordinance No. 486, which is attached to this Decision Memorandum.
COMMISSION DECISION
The Staff recommends that Schedule 95, Sheet 95-, be accepted for filing with an
effective date of May 8, 2004 as proposed by the Company. Does the Commission agree?
(~~:
7/
udmemos/ldaho power city of Wilder
DECISION MEMORANDUM APRIL 9 , 2004
....
CITY OF WILDER
OR! GINAL
ORDINANCE NO.1ft.lp
(WILDER FRANCHISE AGREEMENT)
BY COUNCILMAN:bN)idA
AN ORDINANCE IN ACCORDANCE WITH IDAHO CODE 50-328 , 50~329 AND 50-329A
GRANTING A FRANCHISE TO IDAHO POWER COMPANY, A CORPORATION, AND TO
ITS SUCCESSORS AND ASSIGNS, TO CONSTRUCT, MAINTAIN AND OPERATE IN
AND UPON THE PRESENT AND FUTURE STREETS, HIGHWAyS AND OTHER PUBLIC
PI,ACES WITHIN THE CORPORATE LIMITS OF THE CITY OF WILDER, IDAHO
ELECTRIC UTILITY PROPERTY AND FACILITIES FOR SUPPLYING ELECTRICITY
AND ELECTRIC SERVICE TO THE CITY, THE INHABITANTS THEREOF, AND OTHERS
FOR A TERM OF 20 YEARS, INCLUDTNG THE NONEXCLUSIVE RIGHT TO
PHYSICALLY LOCATE AND MAINTAIN TELEPHONE, CABLE, FIBER OPTICS OR
OTHER COMMUNICATIONS FACILITIES; PROVIDING FOR FINDINGS; SETTING
FORTH AN AGREEMENT NOT TO COMPETE, RESERVING POWER OF EMINENT
DOMAIN; PROVIDING FOR THE PAYMENT OF 1% FRANCHISE FEE; AND PROVIDING
THAT THE CITY SHALL HAVE THE RIGHT SUBJECT TO AN ELECTION TO INCREASE
THE FRANCHISE FEE UP TO BUT NOT EXCEEDING 3%; AND SPECIFYING OTHER
LIMITATIONS, TERMS AND CONDITIONS GOVERNING THE EXERCISE OF SAID
FRANCHISE; AND PROVIDING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF WILDER, IDAHO
THAT;
SECTION 1. FINDINGS: The City Council finds that:
A. Pursuant to Idaho Code ~50-329 the City Council has the authority to
grant a franchise for electrical corporations and assess a franchise fee; and
B. Idaho Power Company qualifies as an "electrical corporation" as
defined in Idaho Code ~61-119 for purposes of establishing a franchise agreement
with the City; and
C. That it is in the best interest of the City to collect the 1 % franchise
revenues available.
SECTION 2. The City of Wilder, Idaho (hereinafter called the "City ) hereby grants to
IDAHO POWER COMPANY, a corporation, and to its successors and assigns (hereinafter called
the "Grantee ) the right (subject to the rights of the City set forth in Section 14 hereof), privilege
ORDINANCE - 1 !J 1("'. I ~:, ! /\ I
t'-
':,:),-
and franchise for a period of twenty (20) years from and after the date of publication of this
Ordinance, however, with the right to amend by mutual agreement in accordance with Section
, to construct, maintain and operate in and upon the present and future streets, alleys, highways
and other public places within the corporate limits of the City, electric utility property and
facilities for supplying electricity to the City, and the inhabitants thereof, and to persons and
corporations beyond the limits of the City, including the nonexclusive right to physically locate
and maintain telephone, cable, fiber optics or other communications facilities of the Grantee or
other parties, (provided, that Grantee shall comply with the City's requirements for cable system
franchises) all subject to the terms and conditions hereinafter specified. In the case of annexation
of property to the corporate limit, such area wil1 be considered under this Ordinanc~, upon
effective date of the annexation, subject to Section 9 hereof. All such electric utility property and
facilities now maintained by the Grantee within the streets, alleys, highways and other public
places within the corporate limits of the City shall be deemed covered by this Ordinance asprovided herein.
SECTION 3. All of the Grantee s electric property and facilities in and upon the present
amI future streets, alleys, highways and public places within the corporate limits of the City shall
be constructed and at all times maintained in good order and condition and in accordance with
standard engineering practices and all applicable safety codes and lawful. governmental
regulations, including all applicable state and federal regulations and all construction standards
presently in effect by the Idaho Public Utilities Commission or adopted by that Commission
during the term of this Franchise Ordinance.
SECTION 4. Upon request of the City, the Grantee shall relocate its facilities as
necessary within the present and future streets, alleys, highways and other public places owned
by the City. The City shall have no responsibility for the costs of such relocations. The Grantee
shall bear the cost of relocating its facilities at the City's request, unless the facilities are to be
relocated for the benefit of a third party, in which case the third party shall pay the costs of
relocation. In the event federal, state or other funds are available in whole or in part for utility
relocating purposes, the City shall apply for such funds and the Grantee will be reimbursed to the
extent any such funds are actually obtained.
SECTION 5. It shall be lawful for the Grantee to make all needful or convenient
excavations and/or installations in any of the present and future streets, alleys, highways and
other public places within the corporate limits of the City for the purpose of erecting and
maintaining the posts, poles, towers, or other supports for its wires or for the purpose of laying,
maintaining and operating conduits, vaults and wires and other conductors underground for the
purpose aforesaid, or to repair and improve such electric power and light system and to extend
the same; provided that when the Grantee or any person or corporation under the authority of this
franchise, shall disturb any of said streets, alleys, highways or other public places for the
purposes aforesaid, he, it or they shall restore the same to good order and condition as soon as
praGticable and without unnecessary delay and failing to do so after five days ' notice from the
City, or its duly authorized officer or officers, then the City may place said street, alley, highway
or public place in such condition at the cost and expense of the Grantee, and said Grantee will
forthwith pay the full cost and expense thereof upon demand of the City. . All facilities
ORDINANCE - 2 ORIGtNt\L
constructed under this ordinance shall be placed and maintained at such places and positions in
or upon such public ways and public places as shall not interfere with the passage of traffic and
shall conform to all applicable laws, rules and regulations.
SECTION 6. The City shall have the right and privilege to string and maintain wires for
its internal communications for its fire, police, airport and other services upon the poles and other
facilities erected and maintained by the Grantee hereunder, subject to the Rules and Regulations
of the Idaho Public Utilities Commission. The City shall string, maintain and operate such wires
at its own expense, risk and responsibility, and in accordance with all legal requin::rm:nts and
good engineering practices and in such manner as not to impose any additional expense upon
Grantee of its said poles and facilities. Any such wires of the City shall be subject to interference
by the Grantee only when necessary in the maintenance, operation or repair of the Grantee s own
fixtures, wires, facilities and appurtenances.
SECTION 7. The Grantee shall at all times indemnify and hold the City, its officers
employees and agents, harmless from any and all expenses or liability arising from or by reason
of any negligent act or omission of the Grantee, its representatives or employees, in the
construction, operation or maintenance of any of the Grantee s electric utility property
facilities.
SECTION 8. Upon acceptance of this franchise by Grantee and before Grantee shall
have any rights hereunder, Grantee shall file with the City Clerk a Certificate of Insurance
evidencing General Liability Insurance which covers claims for Bodily Injury, Property Damage
and Personal Injury. Such insurance shall have minimum limits of $1 000 000 per occurrence.
The City of Wilder shall be named as an "Additional Named Insured" under Grantee s insurance
policy. Should the minimum limits of insurance as set forth herein be increased above
000 000, pursuant to the Idaho Tort Claims Act (Idaho Code Section 6-901 et. seq.) or any
similar legislation, the Grantee shall be required to provide the City with a new Certificate of
Insurance evidencing the higher limits upon the City's request.
SECTION 9. The electric service to be furnished to the public hereunder, and all rates
and charges therefore, and all regulation ofthe Grantee hereunder, shall at all times be subject to
all rules, regulations and orders that may be lawfully prescribed by the Idaho Public Utilities
Commission or by any other governmental authority now or hereafter having jurisdiction over
such matters. During the term of this franchise, Grantee shall ar all times assure that customers
within the City have access to customer service from the Grantee as required by the Idaho Public
Utilities Commission.
SECTION 10- As compensation for the right. privilege and franchise hereby granted, the
Grantee as a condition of acceptance of this grant of franchise shall agree to pay to the City on or
before the 30th day of January, April , July and October, an amount equivalent to one percent
(1 %) of Grantee s "gross revenues" for the preceding calendar quarter. For purposes of this
Section
, "
gross revenues" shall mean the amount of money billed by the Grantee for the
electricity it sells within the corporate limits of the City to customers, less uncollectibles. The
City shall provide appropriate information to the Grantee to allow the Grantee to identify which
ORDINANCE - 3 ORIG\NAL
of its customers are located within the corporate limits of the City for purposes of paying
franchise fees. Grantee shall not be responsible for any failure to pay franchise fees which results
from deficiencies in such information provided hy the City. In the event the City annexes a new
area into its corporate limits, the terms of this Section 9 regarding franchise fees shan not apply
to the annexed area until sixty (60) days after the City has supplied the Grantee with appropriate
information for the identification of the Grantee s customers within the annexed area.
The Grantee s franchise fee payment obligations hereunder shall commence with the start
of the Grantee s first full billing cycle following the effective dalt:: of this ordinance; provided
that the Grantee must first receive approval from the Idaho Public Utilities Commission for the
collection of the franchise fee in the rates charged by Grantee.
SECTION 11, The City shall have the right during the term of this Franchise Ordinance
to increase the fnmchise fee hereunder up to three percent (3%), by obtaining' approval of a
majority of voters of the City voting on the question at an election held in accordance with
chapter 4, title 50, Idaho Code. Any such vote to increase the franchise fee hereunder shall
plOvide that the increased franchise fee will apply to any electric. service provider (other than the
City) who utilizes the City s streets, alleys or other public places. to provide electrical service
within the City, during the term of this Franchise Ordinance.
SECTION 12. The Grantee shall keep accurate books of account for the collection of the
franchise fees hereunder and the City shall have the right to inspect the same at an times during
business hours, and from time to time audit the same for the purpose of determining gross
revenues under Section 9 above.
SECTION 13, The franchise fees paid by the Grantee hereunder wiH be in lieu of and as
payment for any tax or fee imposed by the City on the Grantee by virtue of its status as a public
utility including, but not limited to, taxes, fees or charges related to easements, franchises, rights-
of-way, utility lines and equipment installation, maintenance and removal during the term of this
Franchise Ordinance.
SECTION 14. The Grantee shall have the right and privilege, insofar as the City is able to
grant the same, in accordance with National Arborist Association standards, of the pruning of an
trees which overhang the present and future streets, alleys, highways and other public places
within the corporate limits of the City, in such a manner and to such extent as will prevent the
branches or limbs or other parts of such trees from touching or interfering with its wires, poles
and other fixtures and equipment. However, except in an emergency, no pruning shall be
undertaken without giving the occupant of the adjacent property written or oral notice that such
pruning will be performed-
SECTION 15. In consideration of Grantee s undertaking hereunder as evidenced by its
acceptance hereof, the City agrees not to engage in the business of providing electric service
during the life of this franchise or any extension thereof in competition with the Grantee, its
successors and assigns; but nothing herein contained shall be construed or deemed to prevent the
City from exercising at any time any power of eminent domain granted to it under the laws of the
ORDINANCE - 4 ORIGINAL
State of Idaho. The City shall not grant a franchise to another electric service provider during the
term of this franchise Ordinance unless the electric service provider has received approval to
providt:: ekctrical service within the City from the Idaho Public Utilities Commission, and the
City has imposed the same franchise fee on the electric service provider as paid by the Grantee.
SECTION 16. In the event of an amendment to the laws, rules or regulations of the City
of Wilder, the State of Idaho or the Public Utilities Commission of Idaho applicable to this
franchise, or for periodic review of any section of this Ordinance, the terms of this franchise and
the rights and privileges hereby conferred may be changed, altered, amended or modifit::d by the
City upon mutual agreement between the City and the Grantee. In all cases, 60 days notice shall
be required on the part of City or Grantee to reopen the Ordinance pursuant to this section.
SECTION 17. Any violation by the Grantee of the provisions of this ordinance, franchise
and grant or any material portions thereof or the failure promptly to perform any of the provisions
thereof shall be cause for the forfeiture ofthis franchise and grant and all rights hereunder by the
City after sixty (60) days' written notice to the Grantee and the continuance of such violation
failure or default; hOWt::yt::f, this provision shall not prevent the Grantee from submitting such
question of violation or forfeiture to the appropriate forum (which may include the district court
having jurisdiction or the Idaho Public Utilities Commission) for determination.
SECTION 18. Sale, assignment or lease of this franchise is prohibited without
notification to the City.
SECTION 19. The Grantee shall assume the cost of publication of this franchise as such
publication is required by law.
SECTION 20. The Grantee shall within thirty (30) days after final passage of this
ordinance, file with the City Clerk its acceptance of this franchise in writing signed by its proper
officers and attested by its corporate seal.
SECTION 21. The existing franchise Ordinance between the City and Grantee set forth
, Ordinance No. 279 , dated March 10th, 1981 , shall terminate upon the adoption and
acceptance of this ordinance.
SECTION 22. Inasmuch as the Grantee has constructed and now is maintaining and
operating the electric utility property and facilities in and upon the streets, alleys, highways, and
public places in the City, it is hereby adjudged and declared that this Ordinance is necessary for
the preservation of the public peace, health and safety, and therefore this Ordinance shall take
effect on the date of publication of this Ordinance-
ORDINANCE - 5
ORIGINAL
PASSED AND ADOPTED by the Council of the City of ~JiLDEJ:L
of JeX3I?LI.A.R-)i 20M-.
APPROVED by the Mayor this day of k:hDI LA-R\I , 2 04-.
~t.
,,'
9!Y lerk
,/;1,n0 :--:#1; 1 J-LJ
(Seal)
ORDINANCE - 6
this lL'~day
u CJ
!~ \
...
.,.6
, ... .
ACCEPTANCE
IDAHO POWERCOMPANY, as the franchisee, accepts the franchise set forth in City of
Wilder Ordinance No.1Bk- and agrees to abide by the terms and conditions thereof.
DATEDthis~dayof Fch
U'\\
Secretary
(Seal)
ORDINANCE - 7
2~.
JL-
James C. Miller
Senior Vice President -Delivery
ORIGINAL